The filibuster is what enables the 'secret hold' in the Senate

Besides blocking legislation that enjoys majority support from coming to a vote, the filibuster lies at the heart of a number of disruptive and anti-democratic practices in the Senate, including the so-called “secret hold.”

A secret hold – or for that matter, a non-secret one – is really nothing but a proxy for a filibuster threat. The Senate ordinarily moves its legislation to the floor by unanimous consent, often under the terms of a formal unanimous consent agreement negotiated by the party leaders, which dictates the agreed-upon terms for the debate, including time limitations, amendments to be offered, etc. Such agreements are the functional analogs of the special rules adopted in the House for the consideration of each individual bill.

The terms of these agreements, if any, are locked in by unanimous agreement to a formally stated unanimous consent request. And when things are running smoothly, the system works quite well. When they’re not, though, that creates the opportunity for a single senator to block legislation from the floor simply by objecting to a unanimous consent request. One objection is obviously all it takes to destroy unanimity, and without that, the bill can’t come to the floor for debate.

But of course, the Senate does have another procedural device for moving legislation to the floor over and above such an objection, and that’s the motion to proceed to consider, or just “motion to proceed” for short. Unfortunately, putting a motion before the Senate — even one as simple as “shall the Senate begin debating this issue?” — means obtaining the consent of a majority, which under current rules requires a debate and a vote.

Why should the Senate debate the question of whether or not to begin debate? I can’t think of a good reason. And it may very well be that no one can. But that’s the current state of the rules. And of course nearly anything that can be debated in the Senate can be debated forever. That is, the motion to proceed is itself subject to the filibuster. Which means that you can have endless “debate” (and I use the term loosely, since hardly any filibusters ever result in additional interaction on the floor any more) on the question of whether or not to begin debate on the bill.

Absurd, right? And a hell of a time waster. But for a busy legislative body in which floor time is a precious commodity, such a filibuster (and the implied threat of a second filibuster on the bill itself, should cloture be invoked on the motion to proceed) is a powerful weapon. So much so, that it is actually recognized as an act of collegial courtesy to inform the party leaders conducting negotiations on any unanimous consent agreements that rather than put everyone through the tedious task of overcoming your objection and possible filibuster of any motion to proceed, you’d appreciate it if they’d just opt to “hold” that legislation instead, and not move to bring it to the floor, thank you very much.

Those party leaders are under no particular obligation — or at least no enforceable obligation — to tell anyone who it was that asked for that hold. Nor why. In terms of effectiveness, it is sufficient that senators be aware that unanimity will be impossible, and that attempting to go around the intended objection will mean slogging their way through the cloture process just to get started on debate. Not to mention possibly having to do it all over again to end debate. And in terms of ending the secrecy associated with holds, so long as party leaders (or someone in their stead) are willing to object on a colleague’s behalf to any unanimous consent request, the damage is done, whether they give up the name of the “real” objector or not.

That’s just one aspect of routine Senate procedural obstruction that grows out of the filibuster. The filibuster need not be “successful” in the sense that it permanently blocks legislation from the floor. It’s enough that senators realize how much of their time you’re threatening to waste to get them to agree to allow you to have your cake (by blocking the bill’s progress) and eat it too (in not having to actually conduct the filibuster you’ve threatened). With the filibuster, it’s often the threat that counts, and it’s usually enough to get a senator what he wants, since the burden of overcoming it rests disproportionately on his colleagues, as opposed to having the burden of delivering on that threat falling to him.

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Editor’s note: Here’s a video of Waldman discussing the filibuster at Netroots Nation:

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Over the weekend, the PBS show Need to Know ran a fantastic piece on Senate dysfunction, focused in particular on filibuster abuse. It features Sen. Tom Udall, a big supporter of Senate rules reform, and George Packer, who wrote a stellar piece on Senate dysfunction for The New Yorker earlier this year. It's a lot of good info packed in 15 minutes.

The Senate's not working because it doesn't take any work to stop it from working -- and that's what the Republicans are interested in doing. Current rules make stopping the Senate from doing its work the easiest thing in the world to do. That's got to change.

The Senate clearly isn't working, and the frustration is being felt outside and inside the body. I challenge my colleagues and all of you to support my Constitutional option for changing the rules and making the Senate function again.

The filibuster stands today as the single most important impediment to the significant reforms needed in America's climate/energy policies, its immigration policies, its labor law policies, and its need for a functioning judiciary. But beyond that, the filibuster has become a critical force undermining the workings of democratic accountability.